Harris v. McClintic-Marshall Construction Co. , 168 Mo. App. 724 ( 1913 )

ELLISON, P. J.

Defendant was engaged in constructing the iron and steel superstructure to a bridge across the Missouri river at Kansas City, Missouri. Plaintiff’s father was an employee with others under the direction and superintendence of a foreman. At the time in question he was at work near seventy-five feet from the ground and was knocked off the bridge by a heavy chain attached to a boom, as it was being swung around. He fell to the ground and was killed. He was divorced from his wife and he left plaintiff, a boy ten years of age, as his only child. Plaintiff brought this action for damages and obtained a verdict for five thousand dollars, of which twenty-five hundred dollars was remitted in the trial court.

There was a demurrer to the evidence, overruled by the court. We will not set out a detailed statement of the facts; but we will accept the evidence in plaintiff’s behalf tending to prove the issues tendered by him, as the facts of the case. Deceased was thirty years of age at his death and was strong in body, industrious, and generally in good health. He was earning four dollars per day. He was standing on a steel girder high above the ground engaged with others in constructing the bridge, the foreman being near by. An engineer in charge of an electric engine operated a derrick. When a signal was given to the engineer by the foreman, he would start it, and the boom with a heavy chain attached would begin to swing- around at a speed of a man’s ordinary walk. A coworker would guide the boom by means of two swing lines, one in either hand. There was evidence tending to show that when swinging around, the chain should be higher than the heads of the workmen, or, if not, that a warning should be given of its coming. In the instance resulting in deceased’s death, the foreman signalled by crying out to the engineer, “Boom around,” when it started with the chain above the girders but lower than the heads of the men. He did not cry a wárning for the chain, and as it passed around approaching deceased from behind, it knocked him off. The jury could well infer from the evidence that the foreman’s failure to give warning of the chain, or to notice deceased’s peril, was from the fact that after giving the signal he began a conversation with some one.

On the question of contributory negligence of deceased, it is suggested that the order' of the foreman, “boom around,” was a warning which he must have heard, since others further away heard it. But it was rightly a question for the jury whether deceased could not well have relied upon a look-out warning if the chain was low enough to strike him, especially as he was known to be at work with his back to it, and that it was known to be the foreman’s duty to watch the chain, or appoint some one to do it.

We have not discovered any ground for attributing the injury to the negligence of deceased’s fellow-servants.

"We have no doubt of the propriety of the action of the court in refusing 'defendant’s demurrer. The foreman stood for the defendant and the latter is liable for his neglect. [Miller v. Mo. Pac. Railway, 109 Mo. 350; Stewart v. Railway Co., 149 Mo. App. 456; Dayharsh v. Railway Co., 103 Mo. 570; Jordan v. New England Structural Co., 197 Mass. 43.] This last case is one with many facts similar to the case at bar.

The only matter which has given us any concern is the amount of the verdict. Defendant calls attention to the fact that plaintiff was only entitled to his pecuniary loss and that he was living with his divorced mother. But the evidence does not show that deceased had abandoned him, or that he did not intend to discharge parental duty to him. On the contrary it shows that he corresponded with him and asked him more than once to come to him. The letters show an expectation to visit the child and disclose affectionate consideration. The fact that the trial court required a reduction of the verdict one-half, is not conclusive of prejudice on the part of the jury, as is evidenced by the action of the Supreme Court in the following cases: Partello v. Railway Co., 240 Mo. 122; Chitty v. Railway Co., 166 Mo. 435; Cook v. Globe Printing Co., 227 Mo. 471.

While the jury must have a basis for the sum awarded, yet the damages are necessarily in great part conjectural.

We conclude we should not interfere and hence affirm the judgment.

All concur.